Hague Convention On Choice Of Court Agreements China

Essentially, the convention seeks to repeat, for court decisions, what the 1958 New York Convention obtained for international arbitration awards. Clearly, Chinese judicial practice is different from the convention. In China, the answer is lex fori. In general, Chinese courts consider the validity of the decision to be a procedural matter governed by traditional international private lex fori law. On the other hand, under the convention, the law in force is the right of the state of the elected jurisdiction (Article 5, paragraph 1, s. 6 a), Article 9, point a). Chinese judicial practice also differs from the convention in determining whether the court decision is exclusive or not. On the basis of my observation, China`s initial intention to adopt the principle of the essential link is to prevent the parties from taking a Chinese case to a foreign court, which leads to the flow of business. If the Chinese courts are sufficiently competitive, the abandonment of the principle will not lead to such a flow, but will lead to an influx of foreign affairs. Whether China should abandon this principle therefore depends on the confidence of its own competitiveness. While it may be some time before the Hague Convention is applicable in China, it expects a new era of international judicial cooperation. Court decisions can become a practical alternative to arbitration in international transactions. How to deal with differences is a problem that needs to be resolved when China discusses ratification of the convention.

Justice Song requests that the consensual court demonstrate the autonomy of the party in dispute resolution proceedings, and that it not be unduly disturbed and limited. Historically, the execution of a foreign judgment in China was almost impossible in relation to the enforcement of foreign arbitration awards. [4] In 2015, China`s Supreme Court, in a judicial direction[5], encouraged the courts to establish reciprocity between BIS countries and China, even in the absence of a bilateral judicial cooperation agreement. However, under Article 3, point (a), of the Convention, a for agreement, which refers to the courts of a contracting state or one or more specific courts of a contracting state, is considered exclusive, unless the parties have expressly provided otherwise. In other words, the convention considers that the choice of the judicial agreement is in principle exclusive and, in exceptional cases, non-exclusive. The parties to the agreement recognize a judicial agreement between the parties in the field of civil law and, therefore, the courts that were not elected in the agreement ignore all proceedings, unless the elected court refuses to guarantee its jurisdiction. For the convention, the choice of judicial agreements must be « exclusive », i.e. within the framework of the convention, that a group of courts may also be elected, provided they are in the same country. It is not necessary for a court decision to explicitly state that the agreement is exclusive; The designation of a certain (set of) courts automatically renders them exclusive. With this clear guideline and now the Hague Convention, we can expect other decisions such as the one of June 30, 2017, in which The Wuhan Intermediate People`s Court recognized and enforced a civil judgment of a U.S.

court at trial. In that decision, the Court recognized a judgment of the California courts in a share purchase agreement that implied the amount owed, interest and litigation costs, and was considered enforceable in the PRC. The decision was based on the applicant`s demonstrated that there was a precedent for « recognition and enforcement of civil law decisions of Chinese courts in the United States, so that reciprocity for mutual recognition and enforcement of civil decisions between the two countries is established. » [6] The choice of the agreement or the judicial clause should be made after the convention enters into force in the chosen country.